Judgment

ALAGIRISWAMI, J. :- These five appeals by leave are by the State of Assam against the judgment of the High Court of Assam in five petitions filed by the respondents in the respective appeals.

2. Shri Bansi Ram Das was Professor and Head of the Department of Physics in the Government Cotton College, Gauhati. Shri Kanak Lal Das was Professor and Head of the Department of Philosophy. Shri Basanta Kumar Das was a Physiological Chemist in Class I of the Assam Veterinary Service and on the relevant date was the Deputy Director of Animal Husbandry & Veterinary Department. Shri Khageswar Saikia was an Upper Division Assistant in the office of the Deputy Commissioner, Darrang Tezpur on the relevant date, and Shri Anand Chandra Hazarika was a Head Assistant in the office of the Deputy Commissioner, Darrang, Tezpur. On 21st March, 1963 the Government of Assam issued a memorandum raising the age of retirement of its servants from 55 years to 58 years. The relevant portion of the memorandum was as follows :

"3. No Government servant will be entitled to the benefit of the increased age of compulsory retirement unless he has been permitted to continue in service after the age of 55 years after the appointing authority is satisfied that he is efficient and physically fit for futther Government service. The procedure to be followed by the appointing authorities before they permit a Government servant to continue in service is outlined in the Annexure........

4. Notwithstanding anything contained in the foregoing paragraphs, the appointing authority may require a Government servant to retire after he attains the age of 55 years or 3 (three) months notice without assigning any reason.

8. Necessary amendments to the relevant rules will be issued in due course."

In the Annexure to this memorandum the procedure to find out the efficiency and the physical fitness of the employee concerned was laid down. They were to be tested as to their efficiency by a Board consisting of the Chief Secretary, the Secretary of the department concerned and the Head of the Department. As regards physical fitness such persons were to be examined by the Civil Surgeon of the district in which they were posted.

3. These five respondents were not allowed to continue in service in accordance with this memorandum and they filed petitions before the Assam High Court questioning the validity of the orders retiring them from service. The High Court first decided the case of Shri Bansi Ram Das in Civil Rule No. 319 of 1966.They allowed his petition and directed him to be put back in service to continue there till he attained the age of 58 years. The other four petitions were allowed on the basis of this judgment without going into the facts of each case or their merits.

4. All the five officers had put forward the contention that under terms of the memorandum dated 21-3-1963 they had a right to continue in service even after they had completed their 55th year. All of them also contended that they had been picked out for special discrimination. The Governments reply to these contentions was that no one got a right to continue in service after completing 55 years and that there was no discrimination and the fact that some officers were allowed to continue and some others who were found not fit were not continued did not mean that there was any discrimination.

5. In the case of Shri Bansi Ram Das and Shri Kanak Lal Das, who was the petitioner in Civil Rule No. 350 of 1966 (he is now dead and his widow is the first respondent) the Board constituted to consider their cases, after scrutinising their character roll and after consideration of facts decided to recommend them for retention in service beyond 55 years. But the Minister incharge of Education made a note as follows :

"I cannot agree to giving extension to Prof. Kanak Lal Das and Prof. Bansi Ram Das. I consider them to be outmoded in their intellecutal development."

So it can be said these cases are alike. In their cases the co